- (1.) PALOK Basil, J. The facts in the present petition under Section 482, Cr. P. C-lie in a narrow compass but are interesting. On 25-7-1975 requisite quantity of Sugandhit Supari was purchased by the Food Inspector from Lachman Das applicant. On a report of the Public Analyst that some prohibited saccharine was found in the sample, a complaint for prosecuting Lachman Das under Section 7/16 of the Prevention of Food Adulteration Act was filed. On commencement of the proceedings before the Magistrate, the statement of P. W. 1, the Food Inspector, and the statement of the accused paper ant were recorded. In his statement applicant Lachman Das raised an objection that the prosecution was not maintainable in view of the Supreme Court decision in R. G. Pamnani v. State of Maharashtra, AIR 1975 SC 189. wherein it was held that rule 22 framed under the prevention of Food Adulteration Act were mandatory. The Magistrate after hearing the counsel for the parties, upheld the objection and directed discharge of the applicant by his order dated 19-12-77 (Annexure-C to the present petition ). The Food Inspector filed another complaint before the Magistrate on 7-7-1979 about the alleged sale of adulterated Sguandhit Supari by the applicant as noted above. The Magistrate proceeded to summon the accused on 7-7-1979. However, it was stated in the second complaint that the Supreme Court has in the meantime reconsidered its view on rule 22 and has overruled its earlier decision by a larger Bench in the case of State of Kerala v. Lamasery Mohammad, AIR 1978 SC 933. It is apparent that the Magistrate may have felt satisfied because of the said averment in the complaint and proceeded to pass the summoning order dated 7-7-1979 which is under challenge in the present petition under Section 482, Cr. P. C.
(2.) SRI Vinod Kumar Sharma, learned counsel for the applicant, raised two grounds of objection to the said summoning order. Firstly, the order of discharge dated 12-12 1977 between the parties has become final and was never challenged. The Magistrate was bound to follow the rule as then laid down by the Supreme Court. Secondly, the continuance of the second complaint based on a later ruling after fifteen years of the alleged sale in 1975 will be an abuse of the process of court. SRI B. N. LJ pithy, learned counsel for the Nagar Swasihya Adhikari, Agra, has supported the order of the Magis trate dated 7-7- 1979 on the ground that Article 141 of the Constitution of India made it incumbent upon the Magistrate to follow the later law of the Supreme Court and, therefore, he was bound to summon the accused- applicant. He reinforced his argument by adding that the order of discharge is not covered by the provisions of Section 300, Cr. P. C. and the principles of estoppels or repudiate are not applicable and, therefore, the second complaint should be permitted to proceed in accordance with law. It may be noted that a decision which is based even on wrong notions or may not be fully justifiable either on facts or law, has to be challenged before the superior court if it is passed after hearing the parties to the proceeding. Needless to say, in the present case the accused had raised objections about the framing of the charge as early as on I0th December. 1971 relying upon Supreme Court's judgment (AIR 1975 SC 189) holding rule 22 mandatory, which objection was allowed by the Magistrate by his order dated 12-12-1977. la fact, the Magis trate was bound to follow the law of the land as laid down by the Supreme Court under Article 141, he had no option. The Nagar Swasthya Adhikari, Agra, and the complainant were fully aware of the order passed in favour of the accused. Therefore, it was open to then? to challenge the said order and once having submitted to the said decision of the Magistrate, it is very difficult to say that it should be nullified only on the basis of later decision (AIR 1978 SC 933) and that too because of frijol of a second complaint. The real point in controversy, therefore, is whether the earlier decision having become final, should the second complaint be permitted to continue which was admittedly filed after two years of the order of discharge. On the facts stated above, it is obvious that the Nagar Swasthya Adhikari has acquiesced knowingly to the order of discharge in favour of applicant Lachman Das. It is true that Section 300, Cr. P. C. is not attracted to the facts of the case because the earlier order may not be treated as an order of acquittal. Even then, it must be held in this case that the principles behind the finality of a judgment are to apply as the decision between the parties in the first complaint |had become final when the second complaint was filed (See A, I. R. 1972 SC P, 1502 : Bhagat Ram I. S. O. Rajasihan ).
(3.) HOWEVER, reliance was placed by Mr. Upadhya on the decision of the Supreme Court reported in AIR 1962 SC 876 : Prenatal Nath v. Saroj Ranjan Sarkar. It has been held in the said case that and second complaint may be main tainable under certain contingencies. In this context it may be remembered that in that case before the Supreme Court a second complaint was filed because the first complaint had been dismissed in default of the complainant. But this is not the position here. Full-fledged arguments were made on the basis of law prevailing and then an order of discharge came into existence. The case of Pramatha Nath (supra) is thus not attracted to the facts of the present case. Mr. Upadhya then drew the attention of the Court to the decision of the Supreme Court in Ram Das Bhikaji Chaudhari v. Saddened and Ors. , AIR 1980 SC 126. This ruling, in fact, upholds the argument of the learned counsel for the applicant that a judgment which decides a point in issue has to be challenged if its correctness is not to the satisfaction of either Party. The Supreme Court has laid down that the later decision must be followed by the courts within the meaning of Article Clothe Constitution of India. In the given facts of that case it is apparent that the order which was passed in favour of the accused relying upon an earlier decision of the Supreme Court itself was under challenge and was, therefore, set aside on the strength of the later decision of the Supreme Court. It may be remembered that in the present case the said order of discharge was not challenged but a second complaint has been filed a new after about two years of the discharge order. In the cited case the Supreme Court awarded only fine taking into account the lapse of about 6 years from the date of taking of the Sample. There is thus enough force in the argu ment of Sri Vinod Kumar Sharriu that continuing the present proceedings after about fifteen years of the taking of the sample will serves no useful purpose and would amount to an abuse of the process of court.;